Lawrance and CRS Australia and Ors

[2004] AATA 1136

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1136

ADMINISTRATIVE APPEALS TRIBUNAL      )           N2004/505;585;594;

)                      635;659;1000       

GENERAL ADMINISTRATIVE DIVISION		)
Re		AROHA LAWRANCE

Applicant

And

CRS AUSTRALIA,

SOCIAL SECURITY APPEALS TRIBUNAL,

CENTRELINK,

REFUGEE REVIEW TRIBUNAL,

HUMAN RIGHTS & EQUAL OPPORTUNITY COMMISSION,

SECRETARY DEPARTMENT OF FAMILY & COMMUNITY SERVICES

Respondents

DECISION

Tribunal Senior Member M D Allen

Date27 October 2004

PlaceSydney

Decision The application for Orders pursuant to section 35 of the Administrative Appeals Tribunal Act 1975 is refused.

(Sgd) M D Allen

…………………………..
  Senior Member

CATCHWORDS

PRACTICE AND PROCEDURE Applicant’s requests for confidentiality orders pursuant to s 35 AAT Act – Applicant must show that failure to make the orders would result in prejudice to her case – possible embarrassment to Applicant is not a sufficient reason – s 35 does not confer authority to suppress Applicant’s name - Applicant- application refused.

AUTHORITIES

Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247

The Herald and Weekly Times Limited v Williams (2003) 130 FCR 435

Re V C and Australian Federal Police (1985) 8 ALD 587.

Scott v Scott [1913] AC 417

LEGISLATION

The Administrative Appeals Tribunal Act 1975 - s 35

REASONS FOR DECISION

27 October 2004   Senior Member M D Allen  

1.      The Applicant has six matters before the Administrative Appeals Tribunal, five of which are applications for review of decisions made pursuant to the Freedom of Information Act 1982.

2. With respect to all matters, the Applicant has requested that confidentiality orders be made and relied upon s 35 of the Administrative Appeals Act 1975 (AAT Act) as authority for the said application.

3.      As I understand the Applicant’s request she seeks orders that her name be suppressed, that any hearing take place in private and that any written decision of the Tribunal has a restricted distribution.

4. Section 35 AAT Act reads:

“Hearings to be in public except in special circumstances

(1AA) This section does not apply to a proceeding in the Security Appeals Division to which section 39A applies.

(1) Subject to this section, the hearing of a proceeding before the Tribunal shall be in public.

(1A) If, at a time a hearing is in public, a person participates in the hearing by a means allowed under section 35A, the Tribunal is to take such steps as are reasonably necessary to ensure that the public nature of the hearing is preserved.

(2) Where the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, the Tribunal may, by order:

(a) direct that a hearing or part of a hearing shall take place in private and give directions as to the persons who may be present; and

(aa) give directions prohibiting or restricting the publication of the names and addresses of witnesses appearing before the Tribunal; and

(b) give directions prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal; and

(c) give directions prohibiting or restricting the disclosure to some or all of the parties to a proceeding of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceeding.

3. In considering:

(a) whether the hearing of a proceeding should be held in private; or

(b) whether publication, or disclosure to some or all of the parties, of evidence given before the Tribunal, or of a matter contained in a document lodged with the Tribunal or received in evidence by the Tribunal, should be prohibited or restricted;

The Tribunal shall take as the basis of its consideration the principle that it is desirable that hearings of proceedings before the Tribunal should be held in public and that evidence given before the Tribunal and the contents of documents lodged with the Tribunal or received in evidence by the Tribunal should be made available to the public and to all the parties, but shall pay due regard to any reasons given to the Tribunal why the hearing should be held in private or why publication or disclosure of the evidence or the matter contained in the document should be prohibited or restricted.”

5. At the outset, I must state that I see no authority in s 35 to order that the Applicant’s name be suppressed and that she be known only by a code for example a series of letters.

6. I am aware that the Tribunal has in the past made directions to the effect that an Applicant’s name be suppressed and they be known by some other nomenclature or code but I do not see any authority for this in s 35 AAT Act, notwithstanding the decision of the Tribunal in Re V C and Australian Federal Police (1985) 8 ALD 587.

7.      Some of the Acts which provide for an application to be made to the Tribunal require that matters be heard in private or that the Applicant’s identity not be revealed see for example

s 14ZZE Taxation Administration Act 1953 (as amended)

s 39T(4) Industry Research and Development Act 1986

s 237(5) Life Insurance Act 1995

s 344(11) Superannuation Industry (Supervision) Act 1993

s 501K Migration Act 1958.

8. Apart from legislative requirements such as those cited above, ss 35(3) AAT Act must be given its full force and effect. Thus in Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247 at 272-3 Brennan J (sitting as President of the AAT) said:

“…An order excluding the public may be justified more readily than an order appear excluding a party, but strict criteria govern a making of such an order. There must be a real possibility of doing injustice to, or inflicting a serious disadvantage upon, a party, a witness or a person giving information if the proceedings were in public; or it must clearly appear that publication of the proceedings would be contrary to the public interest; or it must appear that the information to be given in the proceedings is of a kind described by s 36… Where it is contended that publication of the proceedings would be contrary to the public interest, it is difficult to envisage a case justifying exclusion of the public which a court would not deal with by refusing to admit the evidence: this class of case is a narrow one. Where the publicity which traditionally marks curial proceedings may inhibit the production of evidence or lead to its rejection, the power conferred upon the Tribunal by s 35(2) authorizes it to remove those impediments to the receipt of information. Yet the power is conferred in order to do justice in exceptional cases - that is to say, where ‘the principle that it is desirable that hearings of proceedings before the Tribunal should be held in public’ cannot be applied. Some of these exceptional cases are statutorily defined: see, for example, the Insurance Act 1973 s 63(14).”

9.      Likewise in The Herald and Weekly Times Limited v Williams (2003) 130 FCR 435 commencing at paragraph 34 Merkel J (with whom Finn and Stone JJ agreed) said:

“It was likely Williams would be the subject of embarrassing and damaging publicity if the suppression order was not made. However, as was pointed out by Kirby P in John Fairfax v Local Court:

“It has often been acknowledged that an unfortunate incident of the open administration of justice is that embarrassing, damaging and even dangerous facts occasionally come to light. Such considerations have never been regarded as a reason for the closure of courts, or the issue of suppression orders in their various alternative forms… A significant reason for adhering to a stringent principle, despite sympathy for those who suffer embarrassment, invasions of privacy or even damage by publicity of their proceedings is that such interests must be sacrificed to the greater public interest in adhering to an open system of justice (omitting citations).”

The policy reasons for adhering to an open system of justice ware explained in Scott v Scott [1913] AC 417 where Lord Shaw observed at 484-485:

“May not the fear of giving evidence in public, on questions of status like present, deter witnesses of delicate feeling from giving testimony, and rather induce the abandonment of their just right by sensitive suitors? And may not that be a sound reason for administering justice in such cases with closed doors? For otherwise justice, it is argued, would thus be in some cases defeated. My Lords, this ground is very dangerous ground. One’s experience shews that the reluctance to intrude one’s private affairs upon public notice induces many citizens to forgo their just claims. It is no doubt true that many of such cases might have been brought before tribunals if only the tribunals were secret. But the concession to these feelings would, in my opinion, tend to bring about those very dangers to liberty in general, and to society at large, against which publicity tends to keep us secure…”

Lord Atkinson observed that 463:

“The hearing of a case in public may be, and often is, no doubt, painful, humiliating, or deterrent both to parties and witnesses … but all this is tolerated and endured, because it is felt that in public trial is to be found, on the  whole, the best security for the pure, impartial, and efficient administration of justice, the best means for winning for it public confidence and respect.”

10.     Unfortunately the Administrative Appeals Tribunal (the AAT) has on occasions been over-willing to grant confidentiality orders when no real case has been made out for them. Perhaps the fact that Tribunals such as Social Security Appeals Tribunal or Veterans' Review Board sit in secret has unduly influenced certain members of the AAT when review has been sought. It is also unfortunate that in Sydney at least, some Tribunal hearing rooms are so small that the public is effectively excluded from attending any hearing.

11. Notwithstanding practical difficulties, there must be shown some reason as to why justice cannot be done between the parties without the making of an order pursuant to s 35 before the Tribunal can make such an order. I do not regard possible embarrassment to an Applicant as a sufficient reason; see Kirby P (as he then was) in John Fairfax v Local Court (supra).

12.     In particular, the AAT as a superior Tribunal should be very loath to consent to its proceedings taking place in private. It is not uncommon that during an AAT hearing some maladministration will be evidenced and it is proper that such bureaucratic failures be exposed. Similarly, errors of administration exposed in one matter may be applicable to numerous other matters. Invariably one of the parties to any review before the AAT is a government department or instrumentality therefore proceedings before the AAT should be in public, for to use the words of Lord Atkinson quoted above, the hearing of a case in public is “the best security for pure, impartial and efficient administration of justice, the best means for winning for it public confidence and respect”.  To create a review body that restricts, or worse denies, legal representation and then sits in private is to recreate the Star Chamber.

13. In this matter the Applicant has failed to demonstrate that the failure to make an order under ss 35(2) AAT Act would in any way prejudice her case and I refuse the application.

I certify that the 13 preceding paragraphs are a true copy of the reasons for the decision herein of:

Senior Member M D Allen

Signed:         (E.Pope)                  .....................................................................................
  Associate